DWI Convicted Offenders Caught Driving Can Not Serve Sentence Over Weekends

Driving while intoxicated

DWI offenders repeatedly convicted of driving while their license is suspended can not serve sentence over weekends.

On May 22, 2019, in State v. Rodriguez, the New Jersey Supreme Court barred those convicted of repeatedly driving while their license was suspended for drunk driving from serving out their sentences over weekends. Instead, they must be incarcerated for 180 consecutive days.

A conviction for driving on a suspended license will not ordinarily result in jail. When it does, a person may be eligible for a weekend program or other alternative sentencing.
However, there is a specific prohibition on driving while one’s license is suspended because of a conviction for a Driving While Intoxicated (DWI), the penalties are much more serious. This statute, N.J.S.A. 2C:40-36 requires penalties of an additional 1 to 2 year suspension and 10 to 90 days in jail.

The penalties under this statute become even more serious when someone has been convicted of repeated violations of either the statute or the law against DWI. If the individual has been convicted 2 or more times for DWI, then a first offense for driving while suspended for DWI subjects the defendant to the criminal offense. The mandatory minimum jail time is 180 days in jail, without a right of a parole.

Under a separate statute, N.J.S.A. 2C:43-2(b)(7), a court may impose a jail sentence on someone convicted of an offence, but may also provide that the jail time may be served “at night or on weekends with liberty to work or to participate in training or educational programs.”

N.J.S.A. 2C:43-2(b)(7) is designed to allow the judge to exercise leniency and minimize the disruption to the defendant’s ability to contribute to society. Such leniency is authorized, unless other-wise provided by a different statute.

In the Rodriguez decision, the New Jersey Supreme Court held that N.J.S.A. 2C:40-36, the repeat DWI-Suspended license offender statute, does provide otherwise. The Supreme Court found that, although N.J.S.A. 2C:40-36 did not expressly prohibit “intermittent” jail terms, the statute effectively did so by setting mandatory fixed periods of parole ineligibility. The Legislature chose the penalty language of this statute– “fixed minimum sentence . . . during which the defendant shall not be eligible for parole” — to serve as a bar to release, even intermittently, during the period of parole ineligibility. There had been well publicized reports of fatal or serious accidents that had been caused by recidivist offenders with multi-ple prior DWI violations who, nevertheless, were driving with a suspended license. The Legislature had such injuries and deaths in mind and came to regard repeat DWI offenders, particularly those driving while suspended, for after a previous conviction under the same statute most particularly dangerous to society, and particularly unworthy of parole.

Thus, the Court concluded that ’ the prohibition of parole necessarily dictates the prohibition of intermittent sentencing. To find otherwise would create an ‘absurd result.’ Parole, under state regulation N.J.A.C. 10A:71- 6.4, includes extensive conditions which any offender granted parole must comply. In contrast, during an intermittent sentence, such as incarceration only on weekends, does not impose restrictions on the convict during the days between incarceration.

Therefore, allowing a person convicted under N.J.S.A. 2C:40-26 the increased freedom of during the week when the Legislature has simultaneously prohibited the regulated release of parole for the fixed minimum period of time of 180 days would be an illogical result, a result which Supreme Court concluded that the Legislature could not have intended.

The Supreme Court in Rodriguez further expressed New Jersey’s antipathy for drivers who continue to drive, despite multiple DWI convictions and/or multiple convictions for driving while their licenses are suspended for DWI convictions this was reinforced by the Supreme Court, by grouping such offenders with other “no parole” crimes as N.J.S.A. 2C:43-6(c) and (d) (for those who arm themselves before going forth to commit crimes under the Graves Act); and N.J.S.A. 2C:43-6(f) (for those convicted of certain controlled dangerous substance (CDS) offenses). Rodriguez held that under each of these statutes, the legislative bar against granting parole was also a bar against intermittent sentencing.